Page No.# 1/7 vs The State Of Assam
2025 Latest Caselaw 7860 Gua

Gauhati High Court

Page No.# 1/7 vs The State Of Assam on 17 October, 2025

                                                                          Page No.# 1/7

GAHC010184742025




                                                                    2025:GAU-AS:13930

                             THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                             Case No. : Bail Appln./2718/2025

          MD MUJAFER HUSSAIN AND ANR
          SON OF ABDUL HAKIM
          R/O VILL- MOIJANG LAMKHAI
          P.S. THOUBAL, PIN-795128, DIST. THOUBAL, MANIPUR.

          2: MD. ACHOUBA
           SON OF KAYANUDDIN
          R/O VILL- THANGKANPHAI
          KEIRAO MAKHTING MAKHA LEIKAI
           DIST. IMPHAL EAST
           MANIPUR
           PIN-79511

          VERSUS

          THE STATE OF ASSAM
          REPRESENTED BY THE PP, ASSAM




Advocate for the petitioners          :Ms. A. Medhi.
Advocates for the respondent          :Mr. B. Sarma, Addl. PP for
                                       the State, Assam.

           Date of hearing            : 24.09.2025

           Date of order              : 17.10.2025
                                                                       Page No.# 2/7




                                   - BEFORE -
        HON'BLE MR. JUSTICE SANJEEV KUMAR SHARMA
                                ORDER (CAV)

Heard Ms. A. Medhi, learned counsel for the petitioners. Also heard Mr. B. Sarma, learned Addl. Public Prosecutor, Assam for the State respondent.

2. This is an application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, praying for granting of bail in respect of the accused/petitioners namely i) Md. Mujafer Hussain and ii) Md. Achouba in connection with Dillai P.S. Case No. 40/2025 and punishable under Sections 21(c), 25, 29 of NDPS Act, 1985.

3. The case of the petitioners is that on 31.07.2025,Munmi Chutia lodged a written FIR at Dillai PS to the effect that on 30.07.2025, while conducting routine Naka checking at NH 29 Dillai Tiniali at about 10 P.M, one white Swift vehicle bearing registration No. WB02AG 9632 which was moving towards Manja from Dimapur side was signalled to stop. Accordingly, the driver of the vehicle stopped for checking and while checking, it was suspected that there might be some narcotics concealed inside the vehicle. Then,the matter was informed to SSP, Karbi Anglong and SDPO Bokajan gave authorization to WSI (P) Munmi Chutia for conducting search and seizure of narcotic psychotropic's substances if found. After sometime, DYSP (P) Shri Arup Baishya, APS and staff arrived at the Naka checking and in the presence of DYSP and Independent witnesses, the vehicle was searched thoroughly. During the search, two packets of muddy colour powdery substance suspected to be morphine were recovered weighting Page No.# 3/7

a total of 2.127 Kg which was kept concealed in between the fuel tank and upper body inside one torn tube. The recovered substances were tested with the help of DDT kit and found positive for morphine. After that recovered substances were seized, packed and sealed in the presence of independent witnesses and the driver and accompanied persons were apprehended namely

1. Achouba, son of Kayam Uddin, resident of Keitao Makhting Leikai, P.S. Irilbung, District Imphal East, Manipur and 2.Md. Mujafer Hussain, son of Abdul Hakim, resident of Moijing Lamkhai, P.S. and District Thoubal, Manipur.

4. The petitioners were produced before the Court of Judicial Magistrate First Class, Bokajan, Assam on 31.07.2025 and forwarded to judicial custody and since that day, they are in judicial custody.

5. It is submitted on behalf of the petitioners that the petitioners are innocent and have been arrested merely on suspicion and they were not aware of the presence of contraband in the secret chamber of their vehicle. It is further submitted that the arresting authority has not furnished any notice under Section 48 of the BNSS, intimating the grounds of arrest to the relatives/friends of the accused persons and further, the Arrest Memo also does not bear the signature of any of the family members of the accused persons which indicates that they were not aware of the grounds of arrest.

6. The learned counsel for the petitioners has placed reliance on the decision of the Hon'ble Supreme Court inVihaan Kumar Vs. State of Haryana and Another, reported in (2025) 5SCC 799, to submit that non-furnishing of grounds of arrest to the family members/friends etc., of the arrested accused person in writing vitiates the arrest and therefore, the petitioners are entitled to be released on bail. The learned counsel has also relied on several other Page No.# 4/7

decisions of this Court wherein the petitioners had been granted bail due to violation of the provisions of Section 48 of the BNSS and non-compliance with the directions of the Hon'ble Supreme Court in Vihaan Kumar (supra), as well as other connected decisions.

7. Per contra, the learned Addl. Public Prosecutor has submitted that the petitioners had been made fully aware of the grounds of their arrest as would be apparent from the notices under Section 47 of the BNSS issued to the petitioners and moreover, W.T. Message was also sent on 31.07.2025, stating the ground of arrest to the jurisdictional Police Station i.e., Irilbong and Thoubal in the State of Manipur.

8. A perusal of the record would show that Section 47 of the BNSS has been duly complied with as far as providing of information regarding the ground of arrest to the accused persons in writing is concerned.

9. I have perused the W.T. Message dated 31.07.2025 i.e., the date of arrest wherein the grounds of arrest are clearly discernable. The said W.T. Message is addressed to the SHO, Irilbong, Imphal and SHO, Thoubal, Manipur from the SHO, Dillai PS, Karbi Anglong, Assam. In the said W.T. Message, a request has been made to inform the family/guardian of the above mentioned accused persons regarding their arrest and grounds of arrest. Although there is no receipt acknowledgment on the said W.T. Message available on the record or any return W.T. Message indicating service of the said notice, it appears that just two days later i.e., on 02.08.2025, Vakalatnama was filed by the Private Counsel on behalf of the accused persons' which prima facie indicates receipt of the W.T. Message. The accused persons were also represented by the learned LADC on the date of production and subsequently as well.

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10. In Vihaan Kumar (supra), it was held as follows:-

"42. The purpose of inserting Section 50-A CrPC, making it obligatory on the person making arrest to inform about the arrest to the friends, relatives or persons nominated by the arrested person, is to ensure that they would be able to take immediate and prompt actions to secure the release of the arrested person as permissible under the law. The arrested person, because of his detention, may not have immediate and easy access to the legal process for securing his release, which would otherwise be available to the friends, relatives and such nominated persons by way of engaging lawyers, briefing them to secure release of the detained person on bail at the earliest. Therefore, the purpose of communicating the grounds of arrest to the defenue, and in addition to his relatives as mentioned above is not merely a formality but to enable the detained person to know the reasons for his arrest but also to provide the necessary opportunity to him through his relatives, friends or nominated persons to secure his release at the earliest possible opportunity for actualising the fundamental right to liberty and life as guaranteed under Article 21 of the Constitution. Hence, the requirement of communicating the grounds of arrest in writing is not only to the arrested person, but also to the friends, relatives or such other person as may be disclosed or nominated by the arrested person, so as to make the mandate of Article 22(1) of the Constitution meaningfül and effective failing which, such arrest may be rendered illegal."

11. From the above, it is seen that the very purpose of furnishing the notice under Section 50 A of the Cr.P.C./ Section 48 of the BNSS to the relatives etc. is to ensure that they would be able to take immediate and prompt action to secure release of the arrested persons as permissible under the law. In the instant case, it is seen that on the date of production, the accused are represented by the learned LADC and within two days thereafter, they were Page No.# 6/7

represented by Private Counsel engaged by their family members. Therefore, the purpose of Section 48 of the BNSS has been duly served in the instant case.

12. The fact that no bail application on their behalf was filed immediately is a matter that concerns the accused party alone and several factors including the merits of the case, possibility of securing bail, having regard to the nature of the allegations etc., would have been at play, but that itself does not indicate that the accused/petitioners were prejudiced in any manner by the alleged non- service of notice under Section 48 of the BNSS.

13. In State of Karnataka Vs. Sri Darshan Etc. , reported in 2025 SCC Online SC 1702, the Hon'ble Supreme Court taking into account the decision in Vihaan Kumar (supra),has held that while Section 50 of Cr.P.C. is mandatory, the consistent judicial approach has been to adopt a prejudice- oriented test when examining alleged procedural lapses. The mere absence of written grounds does not ipso facto render the arrest illegal unless it results in demonstrable prejudice or denial of fair opportunities to defend. The same principle would undoubtedly extend to Section 50 A of the Cr.P.C./ Section 48 of the BNSS as well.

14. In the instant case, having regard to what has been discussed above, I do not find any demonstrable prejudice has been caused to the accused persons.

15. What must also be noticed is that the addresses of the accused persons lie within the State of Manipur, which is still experiencing severe unrest due to ethnic violence and it is not always easy to effect service of notice and obtain proof thereof. The decision in Vihaan Kumar (supra) cannot be read as permitting of no exception, regardless of the circumstances, which view is prima Page No.# 7/7

facie supported by the use of the word "may" in paragraph 42 of the said judgment.

16. Furthermore, since the charge against the accused is that commercial quantity of drugs had been recovered from their possession, it cannot be said, upon a perusal of the material on record, that there are reasonable grounds to believe that the accused persons are not guilty of alleged offence and thereby, the rigour of Section 37 of the NDPS Act would be squarely attracted in the facts of the case.

17. For the aforesaid reasons, I do not find any merit in the instant bail application. Hence, the prayer for bail accordingly stands rejected at this stage.

JUDGE

Comparing Assistant